David's Hammer: The Case for an Activist Judiciary

By Clint Bolick | Go to book overview

8. Private Property Rights

The New York Times recently reported on the sad plight of a com- munity of farmers whose land was being seized by the local govern- ment. The powers that be, it seemed, had decided that the land would be better put to use as factories. The farmers' leases were essentially torn up, notwithstanding the constitutional guarantee of sanctity of contract. But as one local leader assured everyone, “All the proper procedures were carried out.” As a result, the fields were bulldozed and people who had farmed land in the countryside their entire lives were compelled to move to the city in an attempt to find work. Some were reduced to collecting and selling garbage.1

Not surprisingly, the events I've just described took place in Com- munist China. One would expect that in a totalitarian country with little respect for property rights or the rule of law, bureaucrats could seize land from one person and give it to another with impunity.

But certainly not in the United States, right? Not only do we have a rich tradition of private property rights, but those rights are expressly protected in the U.S. Constitution.2 Both the Fifth and Fourteenth Amendments clothe property rights with the guarantee of due process. Even more to the point, the Fifth Amendment states, ”nor shall private property be taken for public use, without just compensation.”

At least that is what Susette Kelo and her neighbors in the Fort Trumbull area of New London, Connecticut, thought until they received a rude awakening. Kelo had lived in her home with its view of the water since 1997 and had made extensive improvements to it. Her neighbor Wilhelmina Dery had lived in her home since she was born in 1918, and her husband took up residence there when they were married more than 60 years ago. Their son lived in the next-door house, which he and his wife received as a wedding gift. The neighborhood was a tidy and close-knit one, comprising residences and small businesses—a true slice of America.

But in the late 1990s, as part of a broader plan to redevelop New London and increase its tax base, the New London Development

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David's Hammer: The Case for an Activist Judiciary
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Foreword ix
  • 1. Mrs. Swedenburg Goes to Court 1
  • 2. Judicial Activism: Everybody's Favorite Bogeyman 19
  • 3. the Origins and Importance of Judicial Review 35
  • 4. Judicial Activism: The Bad and the Good 49
  • 5. the Rehnquist Court: A Judicial Counterrevolution Fizzles out 69
  • 6. Model Justice 87
  • 7. Economic Liberty 97
  • 8. Private Property Rights 113
  • 9. School Choice 127
  • 10. State Constitutions: The Beckoning Frontier 139
  • 11. an Activist Judiciary, for All the Right Reasons 157
  • Notes 165
  • Index 179
  • About the Author 189
  • Cato Institute 192
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